Fifth Circuit Blog

Thursday, July 31, 2008

Panel Divides Over Intent Requirement in Federal Bribery Statute

The federal bribery statute prohibits, among other things, a public official from soliciting anything of value "in return for . . . being induced to do or omit to do any act in violation of the official duty of such official . . . ." 18 U.S.C. § 201(b)(2)(C). Leading, of course, to the obvious question: "whether 'being induced' requires that the official intend to commit the violation of his duty when he corruptly demands something of value in return for being induced, or whether it is sufficient that he corruptly demanded the payment while knowing that it was for the purpose of inducing him to violate his duty." Turns out the answer either does, or doesn't, have something to do with Abscam and nuts and dried fruit, depending on whether you find the majority opinion or the dissent more persuasive.

Perhaps some facts will help. Valle was a classification officer at a DHS alien detention facility. His duties also included collecting intelligence on illegal activity. At one point, Valle told Fransico Gutierrez-Avlia, an alien detained at the facility, that he had removed criminal charges against Gutierrez and that Gutierrez owed him $20,000 for the favor. As it was, there never were any criminal charges pending against Gutierrez, and Valle hadn't actully done anything other than try to get the money out of Gutierrez. Nevertheless, the solicitation led to a sting, which in turn led to Valle's indictment and conviction on one count of § 201(b)(2)(C) bribery, and one count of extortion. His defense at trial was that he was attempting to collect a $20,000 business debt that Gutierrez owed to a mutual acquaintance.

On appeal, Valle argued that, because there were never any criminal charges pending against Gutierrez, and because he didn't have the power to remove any charges anyway, he didn't intend to actually do anything and therefore wasn't guilty of the bribery charge. And on that point, the panel parted ways.

The majority acknowledged that the plain language of the statute is ambiguous as to whether the official must actually intend to do the act for which he is soliciting the bribe. It therefore turned to legislative history surrounding a 1962 consolidation and revision of the bribery statutes and concluded that the history "shows that Congress did not intend for a violation of § 201(b)(2)(C) to turn on whether the official intended to commit a violation of his duty. Instead, it indicates that Congress intended the statute to be violated when an official took the bribe, knowing that it was given for the purpose of inducing him to violate his official duty, whether or not he actually intended to follow through with the violation." The majority also relied on Myers, a Second Circuit case arising out of the FBI's Abscam sting operation, which adopted that reading of the statute and held that "playacting" is not a defense.

Valle countered that Myers did not survive the Supreme Court's 1999 decision in United States v. Sun-Diamond Growers. There, the Court noted that bribery requires "a quid pro quo—a specific intent to give or receive something of value in exchange for an official act[,]" and "explained that the difference between a bribe under § 201(b) and an illegal gratuity under § 201(c) was that a bribe required a quid pro quo, or influence or inducement upon a public official, whereas an illegal gratuity only required some sort of reward in return for an official act." The majority disagreed that Sun-Diamond requires an intent to actually do an act in exchange for the bribe. It also found no conflict between Myers and Sun-Diamond, because the former involved bribery and the latter involved an illegal gratuity.

Having settled on its construction of the statute, the majority found the evidence sufficient to support Valle's bribery conviction. It characterized Valle's claim that there were never any pending criminal charges against Gutierrez as the same as the "playacting" claim in Myers, and rejected it for the same reason, holding "that an official may be convicted under § 201(b)(2), if he has corruptly entered into a quid pro quo, knowing that the purpose behind the payment that he has received, or agreed to receive, is to induce or influence him in an official act, even if he has no intention of actually fulfilling his end of the bargain." It also rejected Valle's argument that he had no power to remove criminal charges, concluding that "a rational jury could have inferred that Valle was capable of removing criminal charges from an alien registration file, whether those were past criminal history or pending charges."

Judge Wiener dissented. He agreed with Valle that, under Sun-Diamond, "§ 201(b)(2)(C) requires the government to prove beyond a reasonable doubt that the offending government official had the specific intent to provide a quid pro quo, viz., that he actually intended to be influenced in the performance of, or induced to take, an official act in exchange for money." And on that view, Valle was not guilty of bribery, regardless of whether he had the power to remove charges against an alien in the detention facility,

because it was factually impossible for Valle to remove criminal charges against Gutierrez for the obvious reason that no charges were ever filed and none were even contemplated! As noted by the panel majority, before Valle ever proposed the transaction, the Assistant U.S. Attorney had declined to bring charges against Gutierrez for alien smuggling. Inasmuch as (1) there were no charges pending or even contemplated against Gutierrez, and (2) Valle was fully aware that no charges were pending or would ever be brought, it was impossible for him to have formed the requisite specific intent to be influenced in, or induced to take, a specific act, viz., removal of criminal charges, in violation of his official duty. Stated differently, it was an objectively logical impossibility for Valle to have formed the specific intent to deliver on his part of Sun-Diamond’s indispensable element of a quid pro quo.

It's not often that you see a conviction reversed because of evidentiary error, much less on plain error review. But that's exactly what happened to one of the four child pornography counts of which Baker was convicted, all because the Government failed to lay the proper predicate for admission of the evidence it relied on to prove a distribution charge.

The story began when Yahoo notified authorities that someone had posted forty-six images of child pornography on a group web site hosted by Yahoo. The ensuing investigation revealed that the images were posted from e-mail and IP addresses belonging to Baker. Subsequent searches of computers and diskettes seized from Baker's home and office turned up hundreds of images of child pornography. All of this led, of course, to Baker's indictment "on federal charges based on 18 U.S.C. §§ 2252 and 2252A for (1) distributing in interstate commerce forty-six images of minors engaging in sexual conduct, (2) receiving by means of a computer forty-six images of minors engaging in sexual conduct that had been transported in interstate commerce, (3) receiving by means of a computer more than 600 images of minors engaging in sexual conduct that had been transported in interstate commerce, and (4) possessing more than 600 images of child pornography that had been transported in interstate commerce."

At trial, the Government introduced a couple of exhibits relevant to the appeal: 1) a report from the National Center for Missing and Exploited Children containing file names of the forty-six images found on the website (and presumably identifying them as pictures of actual children, although the opinion doesn't say), but not the images themselves, and 2) "a three-ring binder containing printouts of forty-six images identified by filename in the full NCMEC report and stored in electronic format on a disc that accompanied that report." Baker objected to admission of the report, on the ground that the Government had not laid the proper predicate for its admission. He did not make the same objection to the admission of the binder. The district court admitted both exhibits, and Baker was convicted of all four charges.

On appeal, Baker argued that his conviction on all four counts should be reversed because the district court erred in admitting the NCMEC report and binder, for several reasons. The court only addressed one of those reasons: the lack of foundation for the exhibits. Reviewing Baker's objection to the report for abuse of discretion, and his objection to the binder for plain error, the court agreed that his conviction for distribution must be reversed.

The Government introduced both exhibits through an investigator from the Texas Attorney General's office. There was no evidence that the investigator had any personsal knowledge of how the report was prepared, and "[n]o other witness or document in evidence vouches for the source, accuracy, or circumstances surrounding preparation of [the report] or of the disc from which [the binder] was derived." Also, the Government did not brief, or even mention, the applicability of Rules 901 and 902 (concerning authentication) to the NCMEC report. Thus,

[i]n light of the record as a whole, we conclude that the district court erred by admitting [the report] over Baker’s objection that no foundation or predicate was offered. Although the issue is a close one, we cannot confidently say that this error was harmless. [The report] contains two lists of file names corresponding to images that Baker allegedly uploaded to Yahoo; it also states that the listed images “appear to contain child pornography.” The jury could have inferred from [the report] that Baker uploaded child pornography to Yahoo. In fact, [the report] was the only evidence showing that Baker uploaded child pornography to the Internet; [the binder] contained photographs of child pornography, but the photographs alone, taken out of context from the full NCMEC report, presented no evidence that Baker distributed pornographic files.

The court then concluded that admission of the binder was plain error:

The only source in the record of the child pornography images Baker purportedly uploaded was [the binder]. The sole authenticator and sponsor of that exhibit was [the AG's investigator]. Although [he] testified without objection at trial that the images in [the binder] were the ones uploaded to the Yahoo Web site, it is clear from reading the record in its entirety that the witness had no personal knowledge of this fact. At other junctures during the trial, it was apparent that he obtained the images from other state law enforcement officers, and that his only basis for testifying that these images were the ones uploaded to the Yahoo Web site and sent by Yahoo to NCMEC was statements to that effect in the NCMEC report. Because the Government offered no witness competent to sponsor [the binder], the admission of that exhibit was error.

Moreover, that error is plain. The sponsoring witness clearly had no firsthand knowledge of the exhibit’s chain of custody. The Government offered no independent evidence sufficient to show that Baker uploaded to Yahoo the images in [the binder].

That error affected the outcome of the proceedings, and thus Baker's substantial rights, because "[t]he only source of the images that Baker purportedly uploaded to Yahoo was [the binder], so this exhibit was essential to Baker’s Count 1 conviction for distributing child pornography." Even though those images were also found on Baker's home computer, "without [the binder], no evidence shows that Baker uploaded these images to the Yahoo Web site as opposed to downloading them from that or some other Internet source."

As for the final prong of the plain error analysis, the court drew a parallel to a case reversing an order erroneously granting a suppression motion: "If the erroneous exclusion of essential inculpatory evidence has a 'serious effect on the fairness, integrity, or public reputation of judicial proceedings,' we have no trouble concluding that the erroneous inclusion of such evidence does as well."

But this only led the court to reverse Baker's distribution conviction. Baker argued that the erroneous admission of the NCMEC exhibits "prejudiced him with regard to the other three counts on which he was found guilty because this evidence undermined his contention at trial that he did not know that any of the images at issue in Counts 2, 3, or 4 were on his home or work computers." Unlike the thorough analysis it devoted to the challenged exhibits and and their effect on Count 1, the court didn't address Baker's prejudice argument in any depth. Instead, the court simply held that "erroneous admission of [the challenged exhibits] does not require reversal of these [other] counts" because "[t]he Government presented evidence of many images of child pornography on Baker’s home computer and evidence of over 600 images of child pornography on the computer he used at work and on diskettes that were in his office." (As you can see, that's not really responsive to Baker's argument.)

As a final note, be aware that the court did not decide whether the NCMEC report and binder would have been admissible under the business record or public record exceptions to the hearsay rule, because it was unnecessary to do so in light of the court's holding that the Government failed to lay the necessary foundation. So this doesn't mean that such evidence is necessarily admissible, even with the proper predicate. The court also did "not reach Baker’s contention that admitting the NCMEC report without a witness who had personal knowledge of its content or preparation violated his Sixth Amendment right to confrontation." The Supreme Court will likely shed some light on that question when it decides Melendez-Diaz v. Massachusetts next term.

Panel Splits Over Whether Credit-Card Holder Who Is Reimbursed for Fraudulent Charges Is a "Victim" Under U.S.S.G. §2B1.1(b)(2)

Conner was sentenced to 100 months for his participation in a conspiracy to commit access-device fraud and mail fraud. The scheme used commercial credit card accounts, sans authorization, to purchase merchandise and gift cards from Home Depot, Lowe's, and Sam's Club. Conner purchased gift cards in bulk from another co-conspirator, and resold them on eBay. He and the others also used the gift cards to purchase power tools from the stores, which they also resold on eBay.

Conner raised several unsuccesful challenges to his conviction (evidentiary sufficiency, evidentiary rulings, jury instructions), but prevailed on one of his sentencing arguments. When calculating Conner's offense level under the fraud guideline, the district court found that the offense involved between 50 and 250 victims, triggering a four-level enhancement under §2B1.1(b)(2). The district court arrived at that number by treating each of the commercial credit card account holders as a separate victim. "Conner argued below that the account holders should not be counted as victims because the credit company for each account (five in total) fully reimbursed the accounts for all temporary charges."

The panel majority agreed with Conner. It held that because the account holders weren't out any money, they had not suffered the "actual loss" required for victim status under §2B1.2's commentary. Instead, "there were only five victims under § 2B1.1(b)(2): Home Depot, Lowe’s, Sam’s Club, Citicorp Credit Services, (Home Depot’s issuing credit company), and G.E. Consumer Credit (the issuing credit company for Lowe’s and Sam’s Club)."

On the way to that holding, the majority also pointed out something that applies to all Guidelines calculations, not just victim determinations under §2B1.1(b)(2): Guidelines factual findings must be supported by evidence, not speculation and conjecture.

In finding that the account holders were victims, the district court reasoned that some account holders must have paid bills with fraudulent account charges before ultimately being reimbursed, and this logically involved a loss of business time. Although it did not specifically say so, perhaps this was the district court finding that the account holders ultimately incurred pecuniary harm. The court admitted that it did not have “any evidence” for this conclusion, but that it was just “garden-variety logic.” It is possible that with a proper evidentiary foundation these types of unreimbursed business losses could be considered “actual losses” for the purposes of counting “victims[,]" [keeping in mind that the Application Notes exclude certain types of damages from "loss"]. But the district court’s speculation as to the existence of these facts was an insufficient basis to enhance Conner’s sentence. “[A] finding under the Guidelines must be based on reliable information and a preponderance of the evidence, see U.S.S.G. § 6A1.3, commentary.” And it is the “[t]he Government [that]bears the burden of proving . . . that the facts support a sentencing enhancement.” This standard was not met here. . . . Here, the district court did not point to any evidence of the pecuniary costs incurred by the account holders. Therefore, we cannot accept enhancing Conner’s sentence on this basis.

(some cites omitted). Because of this Guidelines calculation error, the court vacated Connor's sentence and remanded for resentencing.

Judge Garza dissented from the majority's number-of-victims holding. In his view, "[t]he fact that the account holders were later reimbursed for the fraudulent charges they incurred does not mean that the account holders failed to suffer an actual loss." As an example of "how the majority has turned the enhancement on its head," Judge Garza offered a comparison between "a defendant who defrauds 1,000 individuals that, after the fact, have their losses reimbursed by a single insurer and a defendant who defrauds 10 uninsured individuals. Assuming an equal amount of loss, there can be no doubt that the first defendant’s crime is more serious and therefore deserving of a more severe sentence. The majority’s interpretation of the victim enhancement leads to the incongruous result of the second defendant receiving the higher Guidelines range." (Although not adressing the dissent directly, the majority constructively responds by noting that "[t]he district court could properly consider the large number of individual account holders affected by Conner’s crime as part of its consideration of § 3553(a) factors if the court decided to issue a non-guidelines sentence.")

As you are probably already aware, Border Patrol agents Ignacio Ramos and Jose Compean were convicted of a variety of offenses after covering up and failing to report their shooting of an unarmed, fleeing drug smuggler. But in contrast to all the controversy and publicity surrounding the case, the legal issues resolved by the appeal are pretty ho-hum. That's partly because of the nature of the issues raised (challenges to evidentiary rulings and jury instructions, and whether 924(c) applies to law enforcement officers who commit crimes while on armed duty), but also because, as the court put it at one point, "[o]nce at trial, this case was hardly more than a dispute between . . . two sets of facts. The jury was the fact-finder. The jury heard all of the evidence. The jury returned the verdict. The jury did not believe the Border Patrol agents. It convicted them. The government’s evidence, if believed, is sufficient to uphold the convictions. And that is pretty close to the bottom line on [the] guilt or innocence of these agents."

In the end, the court affirmed Ramos and Compean's convictions for assault with a dangerous weapon, assault with serious bodily injury, use of a firearm in the commission of a crime of violence, and deprivation of rights under color of law. But the court reversed the agents' convictions on several counts of tampering with an official proceeding. Of course, as the court notes, the vacation of the sentences won't have a whole lot of practical effect on the remand for resentencing, because the 924(c)'s accounted for ten years of the eleven- and twelve-year sentences that the agents received.

Nevertheless, there's a couple of things in the opinion worth highlighting. First is the court's extensive discussion of the ins-and-outs of immunity agreements and the tension that can arise between a defendant's Sixth Amendment right to call and cross-examine witness, and a witness's right to invoke his Fifth Amendment right not to provide testimony against himself. Keep it in mind if you need a primer on the basics of immunity agreements.

Second, the court held that the term "official proceeding," for purposes of 18 U.S.C. § 1512, "does not apply to routine agency investigations of employee misconduct." (Hence the reversal of the obstruction convictions.) Instead, "'official proceeding' is consistently used throughout § 1512 in a manner that contemplates a formal environment in which persons are called to appear or produce documents. Thus, in all the instances in which the term 'official proceeding' is actually used in § 1512, its sense is that of a hearing rather than simply any investigatory step taken by an agency." (cites omitted). Now you know.

When Defendant Files Untimely Notice of Appeal That is Later Dismissed, Conviction is Final Under 2255 When the Time for Appeal Expired

Here's one for all you habeas-heads and procedure-philes out there: when a defendant files a notice of appeal after the ten-day deadline, but within the thirty-day period in which the deadline may be extended, and the appeal is later dismissed after a finding that there was no good cause or excusable neglect for the late filing, when does the conviction become "final" for purposes of 28 U.S.C. § 2255?

The majority here holds that the conviction became final on the date that the ten-day appeal deadline expired, and not, as Plascencia argued, at the end of the 90-day period in which he could have filed a cert petition seeking review of the dismissal.

The Fifth Circuit had not previously addressed this question, but it had noted in the past "that there is no indication Congress intended federal and state prisoners to be treated differently in habeas proceedings and that 'final' in § 2255 has the same meaning as 'final' used for the analogous limitation period in 28 U.S.C. § 2254 proceedings." And in the latter case, the Fifth Circuit has held that "[w]hen a state prisoner has appealed his conviction to the state court of last resort, the conclusion of the direct review process includes the 90-day period for seeking certiorari in the Supreme Court[,]" but "[i]f the prisoner stops the appeal process before that point, . . . the conviction becomes final when the time for seeking further review in the state court expires."

According to the majority, at least three other circuits applying that rule in the § 2255 context "have held that when a federal prisoner fails to file a notice of appeal from his conviction (in other words, when he fails to pursue the direct appeal process), the conviction becomes final for purposes of § 2255 upon the expiration of the 10-day period for filing a direct appeal." The majority agreed with that approach, and held that "[b]y failing to file an effective notice of appeal by [the ten-day deadline], Plascencia allowed the direct review process to expire, and his conviction became final on that date."

Plascencia pointed to the Supreme Court's decision in Clay v. United States, which "held that if a federal defendant appeals his conviction to the court of appeals and then does not seek certiorari, the conviction becomes final when the 90-day period expires during which the defendant could have filed a petition for certiorari." But the majority responded that Clay does not apply because Plascencia "never filed an effective notice of appeal in this court[,]" and because any cert petition would have challenged the dismissal of his appeal, not his conviction.

Judge Owen, although recognizing that "there is room for debate" on the question, dissented. She disagreed with the majority's view that Plascencia's untimely notice of appeal was ineffective, as well as the majority's distinction between a cert petition challenging the conviction itself as opposed to one challenging the dismissal of an untimely appeal. In her view, based on the Supreme Court's construction of 2255 in Clay, the statute's "focus is [on] when a criminal conviction in a federal court becomes final and no longer subject to direct review rather than the intricacies of how the direct appeal process is concluded." Judge Owen also argued that the other circuits' decisions cited by the majority in support of its holding "are [not] directly on point." Given that Plascencia could have filed a cert petition after his appeal was dismissed, she found it "difficult to believe that Congress intended the one-year limitation period to commence before the final outcome of proceedings regarding a notice of appeal from a judgment of conviction . . . ."

As you can see, this opinion originally issued last month, but the panel just revised it and we didn't mention it the first time around, so here goes. Plus, in the interim, there been more development in the circuit split on the question presented.

The issue: Thanks to the Supreme Court's decision in Lopez v. Gonzales, we know that a state drug offense is not an "aggravated felony" unless the conduct prohibited by the offense would have been punishable as a felony under the federal Controlled Substances Act. Thus, since a first conviction for simple possession is only a misdemeanor under 21 U.S.C. § 844(a), it isn't an aggravated felony. But § 844(a) also authorizes felony punishment for simple possession committed after a previous drug conviction has become final, provided that the procedures for proving the prior conviction under § 851 are followed. Hence the question: is a subsequent state conviction for simple possession an aggravated felony?

Prior to Lopez, the Fifth Circuit held, in United States v. Sanchez-Villalobos, that a subsequent simple possession conviction was an aggravated felony because § 844(a) authorizes felony punishment for that offense. But Sanchez-Villalobos also held that the conviction at issue was an aggravated felony under United States v. Hinojosa-Lopez, which treated all state felony simple possession convictions---first or subsequent---as aggravated felonies. Thus, as a subsequent panel of the Fifth Circuit observed in Smith v. Gonzales, the effect of Sanchez-Villalobos’s alternative holding with respect to the § 844(a) issue is "uncertain" because the decision’s ultimate holding "is fully explainable by the conclusion reached in [the part] of the decision [relying on Hinojosa-Lopez] that the conviction qualified as a felony because under state law the punishment for the offense exceeded one year."

Which brings us to Cepeda-Rios, which concluded that Lopez does not require reversal of the recidivist-possession holding in Sanchez-Villalobos. In so holding, Cepeda-Rios relied on some dicta in a Lopez footnote, in which the Court said that

Congress did counterintuitively define some possession offenses as “illicit trafficking.” Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in § 924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U.S.C. § 844(a), clearly fall within the definitions used by Congress in 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute “illicit trafficking in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech.

Having quoted this passage, Cepeda-Rios concluded that the hypothetical approach used in Sanchez-Villalobos is consistent with Lopez's analysis. It then relegates the real meat of the issue to a footnote of its own:

Cepeda-Rios argues that the government’s failure to comply with the procedural requirements of § 851(a) prohibit the court from enhancing his sentence under § 844(a) based on his first state possession conviction. Although Cepeda-Rios’s argument would have merit if the government was actually seeking to prosecute him under § 844(a), he was not prosecuted under that section. Thus, the relevant inquiry under the sentencing guidelines is whether the crime is punishable under § 844(a). The United States was not a party to Cepeda-Rios’s state law convictions; it had no opportunity and was not required to comply with the procedural requirements of § 851(a). Cepeda-Rios had the opportunity to object to the finality of his first state possession conviction at his federal sentencing hearing, but he did not do so.

Although the revised opinion in Cepeda-Rios doesn't mention it, there's a developing split on this issue. Prior to Lopez, the First and Third Circuits held that recidivist possession isn't automatically an aggravated felony, with the Third concluding that it won't so qualify unless the state had procedures like those found in § 851 for charging and proving a prior drug conviction, and actually employed them to establish the prior conviction in the subsequent case. See Berhe v. Gonzales, 464 F.3d 74, 85–86 (1st Cir. 2006); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001). The Seventh Circuit, on the other hand, has reached the same conclusion as Cepeda-Rios, relying on the same footnote from Lopez. See United States v. Pacheco-Diaz, 506 F.3d 545 (7th Cir. 2007). The BIA has even gotten in on the fun, concluding that Sanchez-Villalobos remains good law in the Fifth Circuit post-Lopez, but refusing to follow it in cases arising in circuits lacking controlling precedent on the issue. SeeIn re Carachuri-Rosendo, 24 I & N Dec. 382, 391 (BIA 2007); In re Thomas, 24 I & N Dec. 416, 421 (BIA 2007). Plus, after those BIA decisions, the Seventh Circuit issued another opinion in Pacheco-Diaz denying a petition for panel rehearing, with the author of the original panel decision dissenting from that denial (and pointing out that the issue wasn't even fully briefed, as the case was originally argued pre-Lopez)! 513 F.3d 776 (7th Cir. 2008) (per curiam). Most recently, the Sixth Circuit has weighed in on the side of of the First and Third Circuits, holding that, under the "hypothetical federal felony" approach of Lopez, a simple possession conviction occurring after a prior drug conviction is not an aggravated felony "unless [the subsequent] conviction required a finding of a prior conviction." Rashid v. Mukasey, No. 06-4270 (6th Cir. June 26, 2008).

Of course, as usual, all of this activity means that you should consider preserving the issue should it arise in any of your cases.

Court Correctly Holds Defendant Has Absolute Right to Withdraw Guilty Plea Before It's Accepted, But Did It Apply Wrong Standard of Review?

This appeal concerns Federal Rule of Criminal Procedure 11(b)(1), which permits a defendant to "withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no reason[.]" Not surprisingly, the court correctly holds that the rule means what it says. Unfortunately, the court creates some confusion with an unnecessary discussion of an question that wasn't at issue and that the court doesn't resolve, and by applying the wrong standard of review.

The procedural posture: Arami agreed to plead guilty to one count of a five-count indictment, in exchange for dismissal of the remaining four counts. He also consented to allowing a magistrate judge take his plea. After the hearing, the magistrate judge recommended that the district judge accept the plea. A couple of months later, Arami filed a motion to withdraw his guilty plea, "asserting his innocence and stating that the allegations contained in the factual basis were incorrect." The district court denied the motion after a hearing. Eight days later, the district court adopted the magistrate judge's recommendation, accepted Arami's guilty plea, and sentenced him to 27 months' imprisonment.

Arami appealed his conviction, arguing that the district court violated Rule 11(d)(1) by refusing to allow him to withdraw his guilty plea. The court of appeals agreed, finding the rule clear: "Rule 11(d)(1) is an absolute rule: a defendant has an absolute right to withdraw his or her guilty plea before the court accepts it." Since the district court didn't accept Arami's guilty plea until eight days after he moved to withdraw it, the district court erred.

That should be the end of it. Unfortunately, the court drops a footnote with some dicta that might create confusion when it comes to determining exactly when a guilty plea has been accepted. The note discusses a couple of Fourth Circuit cases which held that a plea is accepted as soon as the district court completes the Rule 11 colloquy, and that a defendant may consent to having a magistrate judge accept his guilty plea. The court then goes on to say,

Putting the rules from [those cases] together, the Fourth Circuit likely would rule that when a defendant consents to having a magistrate judge perform the plea colloquy and accept the plea, the court has accepted the plea for purposes of Rule 11(d)(1) once the magistrate judge completes the plea colloquy. Regardless, here, both parties concede that Arami did not consent to having the magistrate judge accept his guilty plea, so we leave for another day the questions of whether an acceptance occurs when the court completes the plea colloquy and whether a defendant can consent to having a magistrate judge accept a guilty plea.

Given the potential for this footnote to cause confusion in the application of an otherwise clear rule, the court probably should have waited for a case squarely presenting the question.

Another fly in the soup is the court's use of plain error review. Why plain error review? That's unclear. The court says that, "[b]ecause Arami did not raise any argument involving Rule 11(d)(1) before the district court, this court must review the district court’s decision for plain error[,]" citing Vonn v. United States, 535 U.S. 55 (2002). But why isn't a motion to withdraw the guilty plea enough to raise the issue in the district court? Also, Vonn isn't on point. Vonn involved a guilty plea colloquy in which the district court failed to admonish the defendant that he had a right to be represented by counsel at trial. The Supreme Court held that the defendant's failure to object to a defect in the guilty plea colloquy results in plain error review of that defect on appeal. But Arami complained of a different kind of Rule 11 error: the district court's refusal to allow him to withdraw his plea before it was accepted. If an unsuccessful motion to withdraw the plea isn't sufficient to preserve the error, it's hard to imagine what would be. Cf. Fed. R. Crim. P. 51.

As it is, the question of whether plain error applies in this situation is largely academic. Because of the way the court analyzes all the plain error elements, a Rule 11(d)(1) violation should always be reversible plain error. Nevertheless, it would have been better if the court had treated this as preserved error, lest its use of plain error create confusion over how to preserve other kinds of error.

Finally, the court suggests a way to head this problem off at the pass:

If a district court wishes to avoid a similar situation in the future—where a defendant pleads guilty in front of a magistrate judge and then later seeks to withdraw the plea before the court accepts it—the district court simply should accept the plea more promptly. In fact, the court can accept the plea before it reviews the plea agreement and imposes a sentence. See United States v. Hyde, 520 U.S. 670, 677-78 (1997)(distinguishing a plea from a plea agreement); Jones, 472 F.3d at 909 (same). But a defendant does not relinquish his right to have a jury determine his guilt or innocence until the court actually accepts the defendant’s guilty plea.

Not sure that's right, either, because Hyde involved former Rule 32(e)'s requirement that a defendant show a "fair and just reason" for withdrawing a guilty plea (now codified at 11(d)(2)(B)). I invite folks to weigh in on that question in the comments.

Turns out we may see some movement on this issue. A few weeks ago a Fifth Circuit panel issued an unpublished opinion in Serna-Guerra v. Mukasey "agree[ing] with the Tenth Circuit that it defies common sense to treat [those convicted of UUV] in the same manner as convicted murderers, rapists, robbers, or burglars for deportation purposes[,]" and "urg[ing] and recommend[ing] that" Galvan-Rodriguez and Brieva-Perez "should be reconsidered and overruled by our en banc court." And a glance at the docket shows that Serna has indeed petitioned for en banc review. All the more reason to keep preserving this issue in your illegal reentry cases.

(It appears that only two judges on the panel are beating the en banc drum, as a footnote explains that "Judge Jolly concurs only in the order granting the motion for summary affirmance and denying as moot the alternative motion for an extension of time to file a responsive pleading.")

"How reliable is DNA in identifying suspects?"

That's the title of this very interesting article from the Los Angeles Times. The answer: maybe not anywhere near as reliable as the FBI wants you to believe. I don't fully understand the science and statistics discussed in the article, but the problem appears to be that the FBI's DNA match methodology is based on some assumptions that have never been subjected to empirical testing. More troublingly, the article talks about the FBI's efforts to block any further inquiry into the issue.

Tuesday, July 08, 2008

New Version of BOP Legal Resource Guide Now Available

The 2008 version of the "Legal Resource Guide to the Federal Bureau of Prisons" is now available on the BOP's website. The publication "provides a general overview of the BOP, its services, and its programs[,]" and "is intended to serve as a guide to legal resources, including relevant statutes, regulations, policy documents, and current case law concerning issues the BOP faces today." In other words, a useful document to consult when dealing with the BOP.

Note that the Legal Resource Guide is not the same thing as the BOP's "Program Statements," which are detailed statements of BOP policy. You can browse the Program Statements here.

Monday, July 07, 2008

Taking Apart the Guidelines, Brick by Brick

Looking for freedom from the Guidelines? Then check out Deconstructing the Guidelines, "a special project undertaken by National Federal Defender Sentencing Resource Counsel" featuring papers that "critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines." Why do such a thing? Because, in the wake of Rita, Gall, and Kimbrough,

[j]udges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Judges may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines, and when they do, the courts of appeals may not grant greater factfinding leeway to the Commission than to the district judge. Whatever respect a guideline may deserve depends on whether the Commission acted in the exercise of its characteristic institutional role. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Notably, not all of the Guidelines are tied to this empirical evidence. When a guideline is not the product of empirical data and national experience, it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in a mine-run case.

Thursday, July 03, 2008

The INA's "aggravated felony" definition includes, among many other things, “an offense that (i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the government exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M). Recently, in Arguelles-Olivares v. Mukasey, the Fifth Circuit held that the Taylor/Shepard categorical approach does not apply when determining whether a prior offenses qualifies as an aggravated felony under (a)(43)(M). Thus, "[t]he requirement that the offense was one 'in which the loss to the victim or victims exceeds $10,000' is a factual matter to be determined from the record of conviction, but the amount of loss is not required to be an element of the conviction itself." And the "record of conviction" can include a broad range of documents; Arguelles-Olivares affirmed the district court's reliance on a PSR for the loss amount.

In so holding, Arguelles-Olivares added to a circuit split on the question. In an odd turn, that split has become starker, while a separate one has apparently disappeared.

Last September, the en banc Ninth Circuit held in Navarro-Lopez v. Gonzales, 503 F.3d 1063, that the modified categorical approach "only applies when the particular elements of the crime of conviction are broader than the generic crime." It does not apply at all "[w]hen the crime of conviction is missing an element of the generic crime altogether[.]" This was apparently a reversal of course for the Ninth Circuit on the categorical approach, bringing it in line with the Fifth Circuit on this question (as discussed in the Ninth Circuit Blog's commentary here and here).

Which brings us to this week's en banc decision from the Ninth Circuit in Kawashima v. Mukasey, Nos. 04-74313, 05-74408 (July 1, 2008). Applying Navarro-Lopez to § 1101(a)(43)(M), the court held that if loss amount was not an element of the prior tax or fraud conviction, then the offense is not an aggravated felony. As the opinion notes, this means that virtually no offense will ever qualify under (a)(43)(M) because loss amount is not an element of most fraud and tax offenses. And it would apply to other portions of the aggravated felony definition, as well, including (D) (money laundering 'if the amount of the funds exceeded $10,000) and (K)(ii) (Mann Act offenses "if committed for commercial advantage").

Two judges concurred in Kawashima, agreeing that it properly applied Navarro-Lopez. But they argued that Navarro-Lopez incorrectly interpreted the INA by applying the Taylor/Shepard categorical approach to the aggravated felony determination. (Notably, however, they didn't argue that Navarro-Lopez incorrectly interpreted Taylor.)

All of this creates the odd situation in which the Ninth Circuit evidently agrees with the Fifth Circuit's understanding of the Taylor/Shepard categorical approach, but disagrees as to whether that approach applies to determinations under one obscure provision in the INA. This Twilight Zone-ish scenario could very well lead to further developments in both cases. The Kawashima concurrence reads like a cert petition, so given the issues involved the case probably has a better-than-average chance of winding up Supreme Court's docket next term. And it'll also be interesting to see whether Kawashima affects a pending petition for rehearing in Arguelles-Olivares.UPDATE:Blog Neuve contributor Steve Kalar offers additional thoughts on Kawashimahere, and adds that Taylor/Shepard issues are at play in yet another Ninth Circuit en banc in United States v. Snellenberger.

Crawley was elected president of a Teamsters local in Louisiana in 1997, 1999, and 2002. Irregularities in the 2002 election prompted an investigation which revealed that Crawley falsified voter ballots, and that he received a $20,000 kickback in connection with a contract for telephone services at the union hall. Crawley was eventually convicted of mail fraud, and several Title 29 embezzlement and false record offenses. In addition to sentencing him to 78 months' imprisonment, the district court ordered him to pay the union local a little over $120,000 in restitution. Crawley appealed his conviction and sentence.

Crawley's challenge to his conviction concerned 404(b) evidence that he argued was improperly admitted. At trial, a union member testified that

[i]n September 2002, Crawley invited Kyle to his home after work hours. There, the two men engaged in an “assembly-line” process: using several different pens, Crawley marked and folded each ballot; he then handed it to Kyle, who placed and sealed the ballot in the return envelope. Crawley used the Union’s membership roster to decide which members were unlikely to vote in the election, such as part-time UPS employees. Kyle testified that peel-and-stick labels generated by the Union’s computer were used on the envelopes to avoid their being challenged. Thereafter, the completed ballots were separated by the zip codes for the “voters” and mailed from various post offices.

Not content to rely on this testimony, the Government called another witness who testified, over Crawley's objection, that Crawley "committed similar acts of voter fraud [in the 1999 election, as well]; and devised the strategy of duplicating ballots for those members least likely to vote." Following that testimony, the district court instructed the jury that "the evidence of the 1999 voter fraud could be considered only for determining Crawley’s 'motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident in engaging in' the 2002 voter fraud."

Applying the Fifth Circuit's two-prong Beechum test, the court of appeals found no error in admission of the testimony concerning the 1999 election. Under the first prong, the court held that the evidence was relevant to Crawley's intent, insofar as it showed that Crawley "acted with the same specific intent in 2002 as he had in 1999." The court rejected Crawley's argument that the evidence was not in fact relevant to intent because his defense was that someone else submitted the fake ballots:

Regardless of the defenses asserted by Crawley, the Government was required to prove specific intent as an essential element of the charged offenses. Therefore, the extrinsic evidence was offered to demonstrate Crawley acted with the requisite intent to commit those offenses. Based on the testimony regarding the 1999 fraud, the jury could rationally conclude that, “because the defendant had unlawful intent in the extrinsic offense [1999 fraud], it is less likely that he had lawful intent in the present offense [2002 fraud]”. Gordon, 780 F.2d at 1173. The testimony, therefore, was offered for a legitimate purpose under Rule 404(b). (Because the evidence was properly offered to show intent, we need not decide whether, in addition, it was admissible to demonstrate motive, as was also held by the district court.)

The court then concluded, as to the second Beechum prong, that the prejudicial impact of the evidence did not substantially outweigh its probative value, because the district court instructed the jury "that the 1999 voter-fraud evidence could only be considered for the limited purpose of determining motive, intent, identity, knowledge, opportunity, plan, preparation, and the absence of mistake or accident in engaging in the 2002 voter fraud. Even assuming, therefore, that admission of the extrinsic evidence posed a risk of undue prejudice, that risk was greatly minimized by the court’s limiting instruction."

(Both of these conclusions are questionable. If anything, given Crawley's defense the evidence was relevant to identity, not intent. But even if, as the court says, the 1999 voter-fraud evidence was relevant to intent, it had little to no probative value in relation to the unfairly prejudicial he-did-it-before-so-he-must-have-done-it-again inference that 404(b) exists to prevent. After all, if the jury were to conclude that Crawley was behind the 2002 ballot falsification, it's all but inconceivable that they would have trouble finding that he did so with the specific intent to defraud the union. It's also hard to see how the district court's instruction to the jury minimized any prejudice, given that it was simply a boilerplate recitation of permissible 404(b) factors, some of which the Government doesn't even appear to have argued for.)

Crawley also challenged the district court's loss findings for purposes of the Guidelines calculations and the restitution award. The district court used Crawley's salary and benefits for both calculations, as well as the $20,000 kickback. To oversimplify things a bit, Crawley argued that the loss amount for both purposes should be limited to the $20,000 kickback, because the union got what it paid for in the form of his services as local president. The court of appeals disagreed, concluding that "[b]y procuring a union office by fraud," Crawley "render[ed] any service valueless ab initio." Additionally, it wasn't possible to sever Crawley's legitimate services to the union from his non-legitimate services. Thus, the district court did not clearly err in the Guidelines calculation, nor did it abuse its discretion in determining the restitution amount.

(This, too, is questionable. Is it really true that Crawley's services as union president were "valueless ab initio"? Unless everything he did as president was corrupt, the union got at least some value out of his service. Doesn't the union as victim receive a windfall by getting all of Crawley's salary and benefits back when they would have otherwise had to pay someone else to do the job? To be fair, the court addresses these points, just not convincingly in my opinion.)